Sharp v. Cherry-Todd Electric Coop, Inc.

Filing 20

STIPULATED PROTECTIVE ORDER adopting 19 Stipulation for Protective Order. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

WILLIAM M.W. SHARP, d/b/a ADAMS BROS.
&CO.,

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CASE NO. 7:14--CV--05014

Plaintiff,
STIPULATED PROTECTIVE
ORDER

v.
CHERRY--TODD ELECTRIC COOP, INC.,
Defendant.

The parties to this action anticipate that they will seek information that may be
designated as containing confidential, proprietary, business, commercial, technical,
scientific, financial, personnel, and/or trade secrets information that is not generally
known and that the designating party would not normally reveal to third parties or would
cause third parties to maintain in confidence, or information, the present disclosure of
which would, in the good faith judgment of the designating party, be detrimental to the
designating party in the conduct of its business.

To protect the confidentiality of

confidential information sought to be discovered in this action, Plaintiff and Defendant,
through their undersigned counsel, jointly request that the Court enter this Stipulated
Protective Order. Accordingly, IT IS ORDERED that the Stipulated Protective Order
("Protective Order") is granted and entered as follows:
1.

This Stipulated Protective Order shall govern the use, handling, and

disclosure of all documents, testimony or information produced or given in this action
which are designated to be subject to this Stipulated Protective Order in accordance
with the terms hereof.

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2.

Any party or non-party producing, serving, or filing documents or other

materials in this action ("Producing Party") may designate any discovery materials as
"Confidential" under the terms of this Stipulated Protective Order if the Producing Party
believes in good faith that such Discovery Materials contain non-public, confidential,
proprietary, or commercially or personally sensitive information that requires the
protections provided in this Stipulated Protective Order.

The designation by any

Producing Party of Discovery Material as "Confidential" shall be made only after review
by an attorney for the Producing Party based on a good faith belief that there is a valid
basis for such designation.
3.

This Stipulated Protective Order applies to any materials produced in this

action that the Producing Party designates as "Confidential" or "Confidential Attorneys' Eyes Only" by so stamping, labeling, marking or writing, or by any other
physical indication whatsoever. All such items marked "Confidential" or "Confidential Attorneys' Eyes Only" shall be treated as such for purposes of this Stipulated Protective
Order.

The Producing Party may also designate documents as "Confidential" or

"Confidential -

Attorneys' Eyes Only" by written notice to opposing counsel which

identifies the documents so designated by Bates number or other reasonable identifying
characteristic, and such designation may be made after production in the event a party
inadvertently failed to so mark such document(s) as "Confidential" or "Confidential Attorneys' Eyes Only."
4.

If a Producing Party believes in good faith that there is a substantial risk of

identifiable harm if particular documents or other materials it designates as
"Confidential" are disclosed to other Parties or non-parties to this action, the Producing

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Party may designate those particular documents or other materials as "Confidential Attorneys' Eyes Only." The designation as "Confidential - Attorneys' Eyes Only" shall
be made only after review by an attorney for the Producing Party based on a good faith
belief that there is a valid basis for such designation.
5.

To the extent any motions, briefs, pleadings, deposition transcripts, or

other papers to be filed with the Court incorporate documents or other materials subject
to this Stipulated Protective Order, the party filing such papers shall designate such
materials, or portions thereof, as "Confidential" or "Confidential - Attorneys' Eyes Only"
and shall file them with the clerk under seal; provided, however, that a copy of such
filing having the confidential information deleted therefrom may be made part of the
public record.
6.

All documents, transcripts, or other materials subject to this Stipulated

Protective Order, and all information derived therefrom (including, but not limited to, all
testimony, deposition, or otherwise, that refers, reflects or otherwise discusses any
information designated "Confidential" or "Confidential -

Attorneys' Eyes Only"

hereunder) shall not be used, directly or indirectly, by any person for any business,
commercial or competitive purposes or for any purpose whatsoever other than solely for
the preparation and trial of this action in accordance with the provisions of this
Stipulated Protective Order.
7.

Except with the prior written consent of the individual or entity designating

a document or portions of a document or any other information as "Confidential," or
pursuant to prior Order after notice, any document, transcript or pleading given
"Confidential" treatment under this Stipulated Protective Order, and any information

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contained in, or derived from any such materials (including but not limited to, all
deposition testimony that refers, reflects or otherwise discusses any information
designated confidential hereunder) may not be disclosed other than in accordance with
this Stipulated Protective Order and may not be disclosed to any person other than: (a)
the Court and its officers; (b) parties to this litigation; (c) counsel for the parties, whether
retained counsel or in-house counsel and employees of counsel assigned to assist such
counsel in the preparation of this litigation; (d) fact witnesses subject to a proffer to the
Court or a stipulation of the parties that such witnesses need to know such information;
(e) present or former employees of the producing party in connection with their
depositions in this action (provided that no former employees shall be shown
documents prepared after the date of his or her departure); and (f) experts specifically
retained as consultants or expert witnesses in connection with this litigation.
8.

Except with the prior written consent of the individual or entity designating

a document or portions of a document or any other information as "Confidential Attorneys' Eyes Only," or pursuant to prior Order after notice, any document, transcript
or pleading given "Confidential - Attorneys' Eyes Only" treatment under this Stipulated
Protective Order, and any information contained in, or derived from, any such materials
(including but not limited to, all deposition testimony that refers, reflects or otherwise
discusses any information designated "Confidential - Attorneys' Eyes Only" hereunder)
may not be disclosed other than in accordance with this Stipulated Protective Order and
may not be disclosed to any person other than: (a) the Receiving Party's Outside
Counsel of record in this action, as well as employees of said Counsel to whom it is
reasonably necessary to disclose the information for this litigation; (b) experts

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specifically retained as consultants or expert witnesses in connection with this litigation
who have signed the Declaration of Compliance, attached hereto as Exhibit A; (c) the
Court and its personnel; (d) court reporters and their staffs; (e) the author of the
document or the original source of the information; and (f) professional vendors to
whom disclosure is reasonably necessary for this litigation.
9.

All persons, excluding those identified in Paragraphs 7(a)-7(c), B(a) and

B(c)-(e), receiving any or all documents or any other information produced pursuant to
this Stipulated Protective Order shall be advised of their confidential nature and must
sign the Declaration of Compliance, attached hereto as Exhibit A, before receiving any
such documents or information. All persons to whom confidential information and/or
documents are ,disclosed are hereby enjoined from disclosing same to any person
except as provided herein, and are further enjoined from using same except in the
preparation for and trial of the above-captioned action between the named parties
thereto. No person receiving or reviewing such confidential documents, information or
transcripts shall disseminate or disclose them to any person other than those described
above in Paragraphs ?and 8 and for the purposes specified, and in no event shall such
person make any other use of such documents, information, or transcripts.
10.

A copy of this Stipulated Protective Order shall be served with a subpoena

or Notice of Deposition on any third party. A third party may designate a document as
"Confidential" or "Confidential -

Attorneys' Eyes Only" pursuant to this Stipulated

Protective Order. Either party may also designate documents produced by a third party
as being "Confidential" or "Confidential -

Attorneys' Eyes Only" pursuant to the terms

of this Stipulated Protective Order within thirty (30) days of being made aware of the

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content of such documents. Any document produced by a third party shall be treated as
"CONFIDENTIAL" pursuant to the terms of this Order for such thirty (30) day period and
thereafter if designated as "Confidential" or "Confidential -

Attorneys' Eyes Only" by

either party or by the third party who produced it. The "Confidential" or "Confidential Attorneys' Eyes Only" restrictions of this Stipulated Protective Order shall no longer
apply to any document produced by a third party that has not been designated as
"Confidential" or "Confidential -

Attorneys' Eyes Only" by the producing third party or

by a party within such thirty (30) day period.
11.

Nothing in this Stipulated Protective Order shall prevent a party from using

at trial any information or materials designated "Confidential" or "Confidential Attorneys' Eyes Only;" provided, however, appropriate steps are taken to protect the
confidential information therein.
12.

This Stipulated Protective Order has been agreed to by the parties to

facilitate discovery and the production of relevant evidence in this action. Neither the
entry of this Stipulated Protective Order, nor the designation of any information,
document, or the like as "Confidential," or "Confidential -

Attorneys' Eyes Only," nor

the failure to make such designation, shall constitute evidence with respect to any issue
in this action.
13.

Within sixty (60) days after the final termination of this litigation, all

materials afforded confidential treatment pursuant to this Stipulated Protective Order,
including any extracts, summaries or compilations taken therefrom, but excluding any
materials which in the good faith judgment of counsel are work product materials, shall

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be returned to the individual or entity having produced or furnished the same or
destroyed at the option of the party producing or furnishing the same.
14.

In the event that any party to this litigation disagrees at any point in these

proceedings with any designation of confidentiality made under this Stipulated
Protective Order, the parties shall first try to resolve such dispute in good faith on an
informal basis. If the dispute cannot be resolved, the party objecting to the designation
may seek appropriate relief from this Court. During the pendency of any challenge to
the designation of a document or information as confidential, the designated document
or information shall continue to be treated as "Confidential" or "Confidential
Attorneys' Eyes Only," subject to the provisions of this Stipulated Protective Order.
15.

This Stipulated Protective Order shall be without prejudice to the right of

any of the parties of this action (a) to bring before this Court at any time the question of
whether any particular information is or is not relevant to any issue of this case or
whether any information is or is not confidential; (b) to seek a further protective order;
(c) to exercise any right or raise any objection otherwise available under the rules of
discovery or evidence; or (d) by application and notice, to seek relief from any provision
of this Stipulated Protective Order on any ground.

During the pendency of any

challenge to the applicability of this Stipulated Protective Order to any document,
information or thing, however, said document, information or thing shall remain subject
to the provisions of this Stipulated Protective Order.
16.

If a party that receives Protected Documents or Confidential Information

discovers that, whether through inadvertence or otherwise, it has disclosed or provided
documents or information designated as "Confidential" to any person or entity not

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authorized to review it under the terms of this Stipulated Protective Order, then that
party shall promptly (a) make reasonable best efforts to seek the return of the
documents or information, (b) inform the other party of the disclosure and the relevant
circumstances (including the identity(ies) of the person or entity to whom disclosure was
made), and (c) advise the recipient of the provisions of this Stipulated Protective Order
and request that they agree to its terms in writing by signing the Declaration of
Compliance, attached hereto as Exhibit A. This paragraph does not limit the remedies
that the other party may pursue for breach of this Stipulated Protective Order.
17.

This Stipulated Protective Order does not authorize or require disclosure

of documents or information protected by or subject to claims of privilege or protection,
including but not limited to the attorney-client privilege or work product protection.
Pursuant to Federal Rule of Evidence 502, the parties agree and this Court orders that if
a party inadvertently or mistakenly produces documents or information subject to a
claim of privilege or protection, such production will not operate as a waiver of the
otherwise applicable privilege or protection. Upon receipt of written notice identifying
privileged or protected documents that were inadvertently or mistakenly produced, the
receiving party shall within ten (10) business days: (a) return or certify the destruction of
all such documents and (b) destroy work product or portions of any work product
containing or reflecting their contents. This provision shall not affect any rights of the
party returning such inadvertently produced documents to move for in camera
inspection of the documents and to compel production of the returned documents all in
accordance with Federal Rule of Evidence 502 and Federal Rule of Civil Procedure
26(b )(5)(8).

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18.

Nothing herein shall affect or restrict the rights of any party with respect to

its own documents or to the information obtained or developed independently of
documents, transcripts and materials afforded confidential treatment pursuant to this
Stipulated Protective Order.
19.

The parties are not required to provide privilege logs for written

communications or other documents created on or after the filing of the Complaint for
which attorney-client privilege or work-product protection is claimed.

For all other

documents, the parties shall follow the.Court's standard requirements for privilege logs.
20.

In the event that any party is subpoenaed or served with any other legal

process by a person or entity not a party to this litigation and is thereby requested to
produce or otherwise disclose "Confidential" or "Confidential -

Attorneys' Eyes Only"

information that was so designated by another party, the party subpoenaed or served as
referred to in this paragraph shall object to the production of the "Confidential" or
"Confidential -

Attorneys' Eyes Only" information by setting forth the existence of this

Stipulated Protective Order and shall give prompt and immediate written notice to the
party who produced the "Confidential" or "Confidential -

Attorneys' Eyes Only"

information in this litigation and its attorneys. Nothing in this Stipulated Protective Order
shall be construed as requiring the party from whom "Confidential" or "Confidential Attorneys' Eyes Only" information was requested to challenge or appeal any order
requiring production of "Confidential" or "Confidential -

Attorneys' Eyes Only"

information covered by this Stipulated Protective Order, to subject itself to any penalties
for noncompliance with any legal process or order, or to seek any relief from this Court.
Notwithstanding the other provisions of this paragraph, a party from whom

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"Confidential" or "Confidential -

Attorneys' Eyes Only" documents or information are

subpoenaed or otherwise required by a governmental agency must notify the entity
requesting the documents or information of its "Confidential" or "Confidential Attorneys' Eyes Only" status, and may ultimately produce the documents or information
to that agency without itself making objections, but shall provide prompt and immediate
written notice of any issuance of any such subpoena to the party who disclosed the
"Confidential" or "Confidential - Attorneys' Eyes Only" information and their attorneys.
21.

The Court retains the right to allow disclosure of any subject covered by

this Stipulated Protective Order or to modify this Stipulated Protective Order at any time
in the interest of justice.
22.

All ethical, legal, and equitable rights and obligations not addressed in this

Stipulated Protective Order remain in force.

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Dated this 3rd day of February, 2015
WILLIAM M.W. SHARP, d/b/a ADAMS BROS. &
CO., Plaintiff,
By: ls/Kenneth W. Hartman
William G. Dittrick (NE# 11024)
Jennifer D. Tricker (NE# 23022)
Kenneth W. Hartman (NE# 21954)
of
BAIRD HOLM LLP
1700 Farnam Street
Suite 1500
Omaha, NE 68102-2068
Phone: [phone]
[e-mail]
[e-mail]
[e-mail]

CHERRY-TODD ELECTRIC COOP, INC.,
Defendant,
By: ls/Steven E. Guenzel
Steven E. Guenzel (NE# 15677)
cl
JOHNSON,FLODMAN,GUENZEL
&WIDGER
1227 Lincoln Mall
PO Box 81686
Lincoln, NE 68501
Phone: [phone]
sg [e-mail]

IT IS HEREBY ORDERED.
Dated this

~ay of February, 20

5.

·----------

Tne Honorable
omas D. Thalken
United States Ma "strate Judge

DOCS/1363453.1

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EXHIBIT A
DECLARATION OF COMPLIANCE

I have read the Stipulated Protective Order entered by the United States District
Court for the District of Nebraska in the action entitled William M. W Sharp, dlbla Adams
Bros. & Co. v. Cherry-Todd Electric Coop, Inc., Case No. 7:14-CV-05014. I understand

the Stipulated Protective Order is a court order designed to preserve the confidentiality
of information designated under the terms of the Stipulated Protective Order. I agree to
comply with all provisions of the Stipulated Protective Order.

I will also ensure

compliance with the Stipulated Protective Order by my employees and/or agents whom
I assign to work on this litigation, if any, and will require each employee or agent to
complete a Declaration of Compliance before providing them with any "Confidential" or
"Confidential -

Attorneys' Eyes Only" documents or information. I also hereby submit

myself to the jurisdiction of the United States District Court for the District of Nebraska
for the purpose of enforcement of any provision of the Stipulated Protective Order.

Dated:
Signature

Name (Print)